Rhiannon's development
105 A matter which was significantly in dispute was whether Rhiannon was developing normally until August/September 1999. There are a number of reasons why this question is important. It impacts on the accuracy of the diagnosis of Dr Rahilly. It also impacts on the question of liability in that Rhiannon's claim is that earlier diagnosis and treatment could have made a difference to her long-term outcome.
106 Its importance on that issue was summarised in the plaintiff's submissions as follows:
"If, as the defendants maintain, Rhiannon was destined to be just as disabled as she now is even if her infantile spasms had been diagnosed and treated earlier, then Dr Rahilly and Dr Grattan-Smith's negligence caused her no harm. But if, as the plaintiffs maintain, Rhiannon could have been better off neurologically than she now is with earlier diagnosis and treatment then the defendants' negligence did cause her some injury loss and damage." (Submissions p 88.)
107 The submissions on behalf of Rhiannon relied upon the evidence of her parents given at the trial and on the evidence of family friends, who had the opportunity to observe Rhiannon since her birth. The evidence of Dr Borg to the effect that she could judge if a child was abnormal by looking at it and she didn't think that Rhiannon was abnormal (T.61.6, 66.20) was also relied upon.
108 The defendants in their submissions relied upon what was described as "contemporaneous histories" given by the parents, on the notes of Doctors Frater and Gibson, and on the video material of Rhiannon in the pink jumpsuit and using the walker as that material was interpreted by Professor Buchanan, Doctors Antony, Hopkins and Wise.
109 The evidence of Ms Ennis at trial was that Rhiannon had developed like her other three children, had smiled from six-eight weeks of age, laughed, babbled, would reach out for objects such as keys, rattles, dummies and toys and hold onto them, could roll from front to back and from back to front, responded to voices and to faces and was trying to crawl. She had in effect noticed no abnormality with Rhiannon's behaviour until shortly before she consulted Dr Rahilly. It was appreciated by both sides that her evidence was important because she was Rhiannon's primary carer.
110 The defendants challenged her evidence at trial by referring to the note of Dr Frater of 6 September 1999 that Rhiannon was "not hearing and not crawling yet". The court was asked to infer from that and the further note "? needs paeds assessment" that either Ms Ennis or Dr Frater had some concern about Rhiannon's developmental progress at the time of that consultation. Although Ms Ennis was definite that nothing was said to her about seeking a paediatric assessment (T.114.3), it is clear from her evidence concerning this consultation that she did not have a particularly good recollection of it (T.112-114). I draw no adverse inference from the fact that Dr Frater was not called by either side.
111 It seems clear from the records of Dr Gibson relating to the consultation of 20 September 1999 (paras [20] - [21] hereof) that developmental delay was a concern of his at that time. When his note is taken with that of Dr Frater it seems likely that developmental delay was a concern when Dr Frater was consulted and that the recollection of Ms Ennis is incorrect on that issue. I draw no inference adverse to either side from the fact that Dr Gibson was not called.
112 The history given by Ms Ennis to the Orana Early Childhood Intervention Centre is not consistent with her evidence at trial. On 13 October 1999 she gave this history:
"Rhiannon well during early stages, not much response to parents - > limited smiling, not interested in people, not interested in toys, limited looking around …"
113 The history given by Ms Ennis to the Dubbo Base Hospital on 24 October 1999 is also inconsistent with the evidence at trial.
"Behind in communicating skills, doesn't really respond… Behind with milestones, doesn't sit up."
114 On admission to the Children's Hospital on 3 November 1999 the following history was recorded by the Registrar, Dr Bloomfield:
"Twelve months old.
. 4 months of - head-nodding and hyperextension
- eyes rolled back.
3-4 x per day.
Occurs in response to noise
Also without stimulus.
Occurs especially after waking.
. In association with crying and being v. upset frequently for 4 months.
Can last all day, normally followed by sleep.
. Blank staring episodes, last about one min.
Occurs 1-2 x per day.
Mum feels she has deteriorated over the past 4 months.
(eg more floppy, less alert)
No smiles in response to people ever.
No babbles or giggles ever.
Mum: unsure of hearing - no response to voice.
- Concerned about deafness.
Concern about vision - doesn't regularly fix and follow.
Poor head control - momentary lift when prone.
Rolling - back to front in past, stopped 4-6 months ago.
Front to back never.
No grasp/reach for objects."
115 This history taken by Dr Bloomfield was attacked on the basis that Ms Ennis was tired at the time after a five hour car trip and after waiting in the hospital for at least five hours. Although Ms Ennis did not herself do the driving, it is quite likely that she was very tired and upset at the time the history was given. Nevertheless, she would have been aware of the importance of giving an accurate history at this time. Tiredness might explain why things were left out but would not explain statements which were wrong. There is also an essential similarity between this history and other histories given by Ms Ennis at about this time. There is no basis to suggest Dr Bloomfield's note-taking was inaccurate and this was not suggested in cross-examination. I am of the opinion that the history given to Dr Bloomfield was a reasonably accurate record of Rhiannon's development up to that time.
116 These histories are reasonably consistent with the evidence of Dr Rahilly as to what he was told by the parents in the first consultation on 21 September 1999. I have concluded that the evidence of Ms Ennis given at trial on the issue of Rhiannon's development is unreliable. The histories given by her in September, October and November, unaffected by the pressures of litigation, are more reliable. That conclusion is supported by her evidence under cross-examination. When pressed on matters of controversy her evidence was inconsistent and contradictory. Her evidence as to the consultations with Dr Borg and Dr Frater (T.107-114) provide a good illustration of this.
117 The evidence of Mr Richards on this subject at trial was that Rhiannon was developing in the same way as her brother, would smile, laugh, giggle, responded to her name being called, could roll from back to front, could roll from front to back, held things in her hand and had started to drink from cups. (It was never clarified whether this meant reaching out for a cup or drinking from a cup which had been placed in her hand.)
118 That evidence is inconsistent with the histories given by Ms Ennis to Dr Rahilly, the Orana Early Childhood Intervention Centre, the Dubbo Base Hospital and the Children's Hospital as indicated above. It is also implicitly inconsistent with Mr Richards' apparent suggestion to Professor Buchanan that there might be some temporal correlation between Rhiannon's immunisation in April 1999 and the onset of her illness (T.509.48-510.58). I have already indicated why I do not accept Mr Richards' explanation of why he told Dr Rahilly that Rhiannon had not smiled.
119 Dr Borg in a letter dated 28 January 2002 to the plaintiffs' solicitors said:
"The first visit - 25.8.99. The child had her R ear inflamed. I gave her some Amoxil which cleared it up. I feel sure I would have had a chat with the mother re: any other symptoms. I certainly would have recorded any history of eye rolling or head-nodding and would have urgently got a paediatric opinion …"
120 In a later letter of 15 February 2002 she advised that she would only obtain a full developmental history for any child if the child appeared abnormal or backward, or the mother mentioned any special symptoms.
121 Her evidence at trial was that she did not observe any signs of global development delay (T.39.52) and had she been given a history of eye rolling or head-nodding, she would have recorded it. Under cross-examination it became clear that Dr Borg had no recollection of the consultation. It was also clear that Dr Borg had no particular knowledge of developmental milestones in very young children. An extract from the cross-examination gives the flavour of her evidence:
"Q. I am asking you whether it accords with your understanding that a child does that normally about the nine month mark?
A. No idea.
Q. A child of about nine months looks in the direction of falling and fallen toys?
A. Yes.
Q. Did you have an opportunity to assess that with Rhiannon?
A. I'm sure she did.
Q. Did you have an opportunity to?
A. I'm sure she did.
Q. What?
A. I told you before sir I cannot remember this consultation at all. Why are you going through all this finicky bit. (T.69)
…
Q. Did Rhiannon?
A. I can't remember sir.
Q. What attempt did you make to assess whether or not?
A. I have no idea. I can't remember.
Q. To be fair it is not something you were trying to assess in that consultation was it?
A. No but I can't remember what happened. Just getting fed up to the teeth.
Q. I'm sorry I missed that.
A. I'm just getting fed up that is all. I don't think this is for me at all. I think you should be talking to paediatricians." (T.69)
122 I found the evidence of Dr Borg to be unhelpful. She had no recollection of the consultation. The effect of the evidence was no higher than speculation that had Rhiannon displayed any signs of developmental retardation, she would have noticed those and noted them down. This was in the context of a consultation for an ear infection with a child she had never seen before and the child being nursed by her mother (T.1096.6). The evidence of Dr Borg provides no support for the proposition that Rhiannon was not suffering from some developmental delay when Dr Borg treated her on 25 August 1999.
123 When Professor Buchanan took over the treatment of Rhiannon in January 2000, he received a history from her parents that she had never been able to grasp objects (T.440.40, 568.44), that she had never made vocal noises, and that she did not sit, creep or crawl. That history was inconsistent with the evidence of Ms Ennis and Mr Richards that Rhiannon was reaching out for objects and holding onto them.
124 The family friends who gave evidence of their observations of Rhiannon were Barbara Lancaster, who regularly babysat her, Diane Dowton who used see her approximately three times per week from the age of three months when her parents visited the take-away chicken shop and Rosita Wade who had seen Rhiannon two or three times each week during her first three months of life but less frequently thereafter. A common feature of their evidence was that Rhiannon smiled, would reach out for things and grab them and was responsive to faces and voices. All of those persons were parents and it was submitted were able to judge the developmental progress of Rhiannon by reference to their experience with their own children. There was similar evidence in the statement of Mark Lancaster who it will be recalled died before the hearing. He was not a parent.
125 The evidence of Mss Lancaster, Dowton and Wade was given in the context of litigation and comprised their statements and oral testimony. I am sure that they genuinely believed what they were saying was the truth. Their evidence however sits uneasily with the statements made by Ms Ennis at a time when litigation was not contemplated to Dr Rahilly, the Orana Early Childhood Intervention Centre, the Dubbo Base Hospital, the Children's Hospital and to Professor Buchanan.
126 There is another difficulty with their testimony. They were not observing Rhiannon from the point of view of determining her state of development. Their observations were intermittent at most. In children as young as Rhiannon was at the relevant time, it seems to me that it would be difficult to determine developmental delay even for the parents of the child. That was the evidence of Doctors Antony, Hopkins and Wise.
127 I base that conclusion also on the video evidence. I watched the video material on many occasions. Unaided by expert opinion, it seemed to me that the sequences showing Rhiannon in the pink jumpsuit and using the walker demonstrated a normal infant of her age. No doubt the same impression was created in those family friends on the occasions when they came in contact with Rhiannon.
128 That was not the opinion of paediatric experts including Professor Buchanan when they viewed those sequences. In that regard the video provides important evidence of an objective kind, which can be assessed by experts in the paediatric field. It provides a better guide to Rhiannon's development than does the subjective recollection of family friends.
129 The evidence of those family friends needs to be further qualified. That of Ms Wade is limited in that her contact with Rhiannon after May 1999 was infrequent. It is difficult to see how she could have formed any opinion as to Rhiannon's development between May 1999 and September 1999.
130 Ms Dowton primarily observed Rhiannon in a pram or being nursed by her mother. Specifically she agreed that she never saw Rhiannon roll, creep, crawl or try to stand up or vocalise. Ms Lancaster's evidence as to Rhiannon's normal development was strongly influenced by her belief that there had been a significant deterioration in September. (T.17)
131 The evidence concerning the video came from Mr Richards. Ms Ennis gave no evidence about the video, nor of Rhiannon's age when the video was taken. There was evidence from Professor Buchanan to the effect that he was led to believe by the parents that the pink jumpsuit video was taken when Rhiannon was approximately six months old. He apparently first saw that video on 17 October 2000 (T.517.48-T.518.3). This is the only evidence which supports the proposition that the video was taken when Rhiannon was aged six months.
132 The video episodes came from longer sequences. They were put together by Mr Richards for use in these proceedings. In chief (T.203-205) he was unable to identify the date when the episode with Rhiannon in the pink jumpsuit was taped. He was unable to explain what had happened to the original tapes from which the episodes were taken. He thought they might have been filmed over. Mr Richards agreed that he had selected tape episodes which he thought might be useful in the case. (T.262.48)
133 Under cross-examination Mr Richards gave this evidence as to the date of the episode showing Rhiannon in the pink jumpsuit.
"Q. Have a look please at the letter I now show you from Maurice Blackman Cashman to Blake Dawson Waldron dated 4 October 2001. Do you recognise that as a letter from your solicitors to the defendants' solicitor?
A. I do.
Q. The letter opens: Please be advised that to the best of Mr Richards' knowledge and belief the following dates and ages for Rhiannon on the video footage are as follows?
A. That is correct.
Q. It goes on to say: Start of video lying on floor May '99?
A. That is correct.
Q. It attributes up until episodes which you told us was the episode at the Tamworth Lookout, everything before then is said to be approximately May '99 about seven months of age?
A. As I said I cannot be a hundred percent on that.
Q. But is it fair to say that doing the best you can the episodes on the video prior to the one showing Rhiannon being carried by the mother up the steps of the Tamworth Lookout, the ones prior to that, to the best of your recollection, without being a hundred percent, is about May '99 at about seven months of age?
A. As I said I cannot be one hundred percent.
Q. I think we all understand that but is it correct that to the best of your knowledge and belief as this letter suggests those episodes were May '99.
A. I am not sure whether these dates are a hundred percent right or not.
HIS HONOUR: The question is; he says it assumes you won't be a hundred percent. Do the best you can.
A. This was the film clips were approximate, taken without the intention of it ever being here towards the court. Where I say May it may have been June, it may have been July. I was clutching at straws when I was writing this.
Q. Mr Brereton is asking a fair question. Are you saying you cannot be a hundred percent but what is your best recollection?
A. I don't have one. All I can say now when the walker one was, your Honour, and the ones after.
BRERETON: Q. We know that Mr Richards but you were able to tell your solicitors weren't you to the best of your knowledge and belief they were taken in May; that is what you told your solicitors wasn't it?
A. Yes.
Q. And that was your best knowledge and belief without being a hundred percent about it wasn't it?
A. At the time, yes.
Q. Has that changed since?
A. Well I'm not sure if it is a bit after it, that's what I'm saying.
Q. It could have been a bit after May 1999 could it?
A. It could have been.
Q. It could have been June, it could have been July?
A. It could have been. It could have been August." (T.264-5)
134 It is significant that Mr Richards in that exchange did not at any time suggest that the video episode in the pink jumpsuit may have predated May 1999. What he was concerned about was whether or not it was later than May 1999. It follows that if the video was taken later than May 1999 Rhiannon's developmental delay would have been more severe. The conclusion I have reached is that the episode when Rhiannon was wearing the pink jumpsuit occurred in May 1999 at the earliest but may have occurred later than that. It is common ground that Rhiannon was seven months old in May 1999.
135 When the pink jumpsuit episode was shown to Professor Buchanan, it was his opinion that the behaviour there depicted was that of a child of about five-six months of age. (T.507.34, 569.11)
136 Dr Jayne Antony was a paediatric neurologist qualified on behalf of the defendants. In her report of 8 January 2002 she said:
"The video film allegedly commences in May 1999 when she was seven months of age. During the recording of seven months she is able to flex her legs, grab her feet with her hands and roll to the side. When she is lying on her stomach she lifts her head and rests on her elbows, whereas at seven months I would have expected that she would fully extend her upper limbs and lift her head and body off the ground.
She does regard her hands in a very self-absorbed way and is also mouthing her own hands and other people's hands, which is the behaviour of a much younger child.
She does not make any attempt to creep or crawl forward and certainly does not get up on all fours.
Her sounds are very limited and do not contain the polysyllabic sounds, which I would expect for a seven month old baby.
There is no observation of her sitting, which at seven months she should be able to do for a few seconds at least and there is no observation of her supporting her weight when held to standing.
I do not believe that her eye contact with her sister is normal and it takes the father to tickle her abdomen to get her to laugh and squeal, whereas most children of her age would be much more vocal and interactive.
There is no observation about her fine motor controls such as her reaching out and transferring, so that aspect cannot be judged."
137 It was the opinion of Dr Antony that the video sequence in the pink jumpsuit indicated a developmental level of between four and five months. She specifically did not agree with the opinion of Dr Hopkins that the video sequence indicated a level of developmental progress appropriate to a child of five to six months of age (T.1126.47).
138 Doctor Ian Hopkins was a child neurologist qualified on behalf of the defendants. He said in his report of 15 February 2002:
"On the basis of the videos it is not possible to state precisely the time at which Rhiannon had onset of her developmental delay. There are no clips of video prior to seven months, so from the information on the video one can only state what the situation has been from the age of seven months and onwards. At seven months she shows a level of developmental progress that I think is appropriate to a child of five-six months of age, rather than her chronological age of seven months. In the first three brief segments, up to approximately three minutes twelve seconds into the video she is seen to be attentive in interacting with her sibling, able to roll on her back onto her tummy but with a little more difficulty than I would expect, and in one segment she appears to have a little difficulty in extracting her left arm from underneath her at the completion of the roll, but fairly good head control in that she is able to lift up her head quite well when lying prone, and also lifts her shoulders off the floor, and has some pre-speech babbling. There are no segments that demonstrate that she can reach out to grasp objects, a milestone that is usually achieved at approximately four months of age, although there were no toys in her immediate vicinity. She certainly was able to grasp her toes when lying on her back, but this is a more primitive milestone than reaching to grasp objects. The grasping of her toes is well shown in the video at approximately the five minute stage. She laughs in response to tickling, but there were not video segments at this stage which showed well whether she smiled and interacted as well as one would expect for a child of seven months. My overall conclusion as stated above was that she was a month or two behind in her developmental progress … Although I cannot be more definite about this after viewing the video her developmental progress at the age of seven months was certainly a little better than I had thought it would be from the accounts I had read, such as Dr Rahilly's records of early October which noted that her father felt that she had yet to smile properly. From the level of development that she displays in the video when she was approximately seven months of age, it is quite possible that her developmental delay had its onset a little later, eg at closer to six months of age than my previous estimate of four-five months."